Confidentially clause/gagging order

[Bandage]

Is a signed confidentiality clause (when leaving an employer) legal if it is done to prevent the employers illegalities being exposed?

[Amethyst]

~Tagging Ula for you and moved thread to Employment law section

but to start with, would disclosure of the 'illegalities' be deemed a protected disclosure ?

43J Contractual duties of confidentiality.

(1)Any provision in an agreement to which this section applies is void in so far as it purports to preclude the worker from making a protected disclosure.

(2)This section applies to any agreement between a worker and his employer (whether a worker’s contract or not), including an agreement to refrain from instituting or continuing any proceedings under this Act or any proceedings for breach of contract.

43B Disclosures qualifying for protection.

(1)In this Part a “qualifying disclosure” means any disclosure of information which, in the reasonable belief of the worker making the disclosure, tends to show one or more of the following—

(a)that a criminal offence has been committed, is being committed or is likely to be committed,

(b)that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject,

(c)that a miscarriage of justice has occurred, is occurring or is likely to occur,

(d)that the health or safety of any individual has been, is being or is likely to be endangered,

(e)that the environment has been, is being or is likely to be damaged, or

(f)that information tending to show any matter falling within any one of the preceding paragraphs has been, is being or is likely to be deliberately concealed.

[Bandage]

~Tagging Ula for you and moved thread to Employment law section

but to start with, would disclosure of the 'illegalities' be deemed a protected disclosure ?

Thank you for that clarification. 43B would apply as criminal offences have been committed. However, the individual was paid to be silent when they left employment.

[ULA]

From what you have said it sounds like the signed confidentiality clause was contained within a Settlement Agreement that was signed on leaving the company, upon which I presume the individual received independent legal advice. Many employers use these clauses to keep alleged wrongdoing out of the public eye and avoid bad PR. There is nothing inherently illegal about a confidentiality clause, since there will be circumstances where both employer and employee want to keep matters between themselves.

Not only must the "protected disclosure" cover one of the six categories detailed in @Amethyst's post but is must also be in the public interest.

[Bandage]

Thank you for that clarification. 43B would apply as criminal offences have been committed. However, the individual was paid to be silent when they left employment.

The individual did not take any legal advice and the matter is certainly in the public interest. The individual would like disclosure, but fears reprisals through the breaking of the confidentiality clause.

[Amethyst]

Can you make the disclosure anonymously to the relevant regulator ?

Did you sign to say you had been told to seek independent legal advice ? ( presumably you have a copy of the agreement - can you type out the confidentiality clause and anything it says on legal advice? )

[ULA]

Was the confidentiality clause contained with a Settlement Agreement negotiated when the person left the company or is it contained within their general contract of employment.

[Bandage]

The individual did not take any legal advice and the matter is certainly in the public interest. The individual would like disclosure, but fears reprisals through the breaking of the confidentiality clause.

Ok. It's not me but I can find out. The person is too scared to do anything without finding out if there will be reprisals for disclosing.

[Bandage]

Can you make the disclosure anonymously to the relevant regulator ?

Did you sign to say you had been told to seek independent legal advice ? ( presumably you have a copy of the agreement - can you type out the confidentiality clause and anything it says on legal advice? )

I can find out. Thanks.

[Bandage]

Can you make the disclosure anonymously to the relevant regulator ?

Did you sign to say you had been told to seek independent legal advice ? ( presumably you have a copy of the agreement - can you type out the confidentiality clause and anything it says on legal advice? )

The confidentiality clause will not have been in their employment contract.

[Amethyst]

No, it's in the settlement / non disclosure agreement isn't it ?

[ULA]

As Amethyst says that would suggest that the confidentiality clause was contained within a Settlement Agreement (SA). Not knowing the circumstances of your friend's departure from the company it may well have been for or in part due to the information that they knew and hence why the company has ensured a comprehensive confidentiality clause.

If it was an SA then your friend would have had to have independent legal advise for which the company would have paid a contribution in full or part to the costs. The legal advisor should have gone through the document and explained the ramifications to your friend on breaching relevant clauses within it. If your friend really does want to "whistle blow" even anonymously then it may be, without the full details here, an idea they have a quick chat with the legal advisor to get there perspective on what action the company could take if they suspected your friend as being the person who exposed the issue.

[Bandage]

As Amethyst says that would suggest that the confidentiality clause was contained within a Settlement Agreement (SA). Not knowing the circumstances of your friend's departure from the company it may well have been for or in part due to the information that they knew and hence why the company has ensured a comprehensive confidentiality clause.

If it was an SA then your friend would have had to have independent legal advise for which the company would have paid a contribution in full or part to the costs. The legal advisor should have gone through the document and explained the ramifications to your friend on breaching relevant clauses within it. If your friend really does want to "whistle blow" even anonymously then it may be, without the full details here, an idea they have a quick chat with the legal advisor to get there perspective on what action the company could take if they suspected your friend as being the person who exposed the issue.

Thank you so much for everything here! The papers signed were called 'Non-disclosure agreements' that were signed when the individuals left the company. Does this make any difference to the advice I have received so far?

[Amethyst]

Not if the acts requiring disclosure are actually criminal offences.

The consequence of breaching the NDA should be in the NDA document - likely to be financial penalty by way of return of any settlement paid. But the NDA can't say ' don't tell anyone about our illegal activities ' so disclosing such should be exempt.

They really would be best taking their concerns a) as to whether the disclosures they want to make are actually illegal activities and b) whether they are able to disclose without breaching the NDA to their independent legal advisor.

[ULA]

Non-disclosure agreements (NDAs) cannot preclude someone from making a protected disclosure for the purposes of the whistleblowing legislation (e.g. disclosure of a breach of legal obligation to a regulator) – and any agreement that purports to do so is void.

So, our guidance insofar as we have given it is correct in that your friend must be making a protected disclosure that is in line with the whistleblowing legislation. If this is the case then any obligation placed within the NDA cannot be enforced.